PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Hollywood Video, Saraland, AL)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 30th day of March, 2000, by and
between Carl R. Whittington, Trustee of the Carl R. Whittington
Trust dated October 16, 1996(hereinafter called "Whittington")
and AEI Income & Growth Fund XXII Limited Partnership
(hereinafter called "Fund XXII") Whittington, Fund XXII (and any
other Owner in Fee where the context so indicates) being
hereinafter sometimes collectively called "Co-Tenants" and
referred to in the neuter gender).
WITNESSETH:
WHEREAS, Fund XXII presently owns an undivided 87.8758% interest
in and to, and Whittington presently owns an undivided 12.1242%
interest in and to the land, situated in the City of Saraland,
County of Mobile, and State of AL, (legally described upon
Exhibit A attached hereto and hereby made a part hereof) and in
and to the improvements located thereon (hereinafter called
"Premises");
WHEREAS, The parties hereto wish to provide for the orderly
operation and management of the Premises and Whittington's
interest by Fund XXII; the continued leasing of space within the
Premises; for the distribution of income from and the pro-rata
sharing in expenses of the Premises.
NOW THEREFORE, in consideration of the purchase by Whittington of
an undivided interest in and to the Premises, for at least One
Dollar ($1.00) and other good and valuable consideration by the
parties hereto to one another in hand paid, the receipt and
sufficiency of which are hereby acknowledged, and of the mutual
covenants and agreements herein contained, it is hereby agreed by
and between the parties hereto, as follows:
1. The operation and management of the Premises shall be
delegated to Fund XXII, or its designated agent, successors or
assigns. Provided, however, if Fund XXII shall sell all of its
interest in the Premises, the duties and obligations of Fund XXII
respecting management of the Premises as set forth herein,
including but not limited to paragraphs 2, 3, and 4 hereof, shall
be exercised by the holder or holders of a majority undivided co-
tenancy interest in the Premises. Except as hereinafter expressly
provided to the contrary, each of the parties hereto agrees to be
bound by the decisions of Fund XXII with respect to all
administrative, operational and management matters of the
property comprising the Premises, including but not limited to
the management of the net lease agreement for the Premises.
Whittington hereto hereby designates Fund XXII as its sole and
exclusive agent to deal with, and Fund XXII retains the sole
right to deal with, any property agent or tenant and to negotiate
and enter into, on terms and provisions satisfactory to Fund
XXII, monitor, execute and enforce the terms of leases of space
within the Premises, including but not limited to any amendments,
consents to assignment, sublet, releases or modifications to
leases or guarantees of lease or easements affecting the
Premises, on behalf
Co-Tenant Initial: /s/ CRW
Co-Tenancy Agreement for Hollywood Video, Saraland, AL
of Whittington As long as Fund XXII owns an interest in the
Premises, only Fund XXII may obligate Whittington with respect
to any expense for the Premises.
As further set forth in paragraph 2 hereof, Fund XXII agrees to
require any lessee of the Premises to name Whittington as an
insured or additional insured in all insurance policies provided
for, or contemplated by, any lease on the Premises. Fund XXII
shall use its best efforts to obtain endorsements adding Co-
Tenants to said policies from lessee within 30 days of
commencement of this agreement. In any event, Fund XXII shall
distribute any insurance proceeds it may receive, to the extent
consistent with any lease on the Premises, to the Co-Tenants in
proportion to their respective ownership of the Premises.
2. Income and expenses shall be allocated among the Co-Tenants
in proportion to their respective share(s) of ownership. Shares
of net income shall be pro-rated for any partial calendar years
included within the term of this Agreement. Fund XXII may offset
against, pay to itself and deduct from any payment due to
Whittington under this Agreement, and may pay to itself the
amount of Whittington 's share of any reasonable expenses of the
Premises which are not paid by Whittington to Fund XXII or its
assigns, within ten (10) days after demand by Fund XXII. In the
event there is insufficient operating income from which to deduct
Whittington's unpaid share of operating expenses, Fund XXII may
pursue any and all legal remedies for collection.
Operating Expenses shall include all normal operating expense,
including but not limited to: maintenance, utilities, supplies,
labor, management, advertising and promotional expenses, salaries
and wages of rental and management personnel, leasing commissions
to third parties, a monthly accrual to pay insurance premiums,
real estate taxes, installments of special assessments and for
structural repairs and replacements, management fees, legal fees
and accounting fees, but excluding all operating expenses paid by
tenant under terms of any lease agreement of the Premises.
Whittington has no requirement to, but has, nonetheless elected
to retain, and agrees to annually reimburse, Fund XXII in the
amount of $550 for the expenses, direct and indirect, incurred by
Fund XXII in providing Whittington with quarterly accounting and
distributions of Whittington 's share of net income and for
tracking, reporting and assessing the calculation of Whittington
's share of operating expenses incurred from the Premises. This
invoice amount shall be pro-rated for partial years and
Whittington authorizes Fund XXII to deduct such amount from
Whittington's share of revenue from the Premises. Whittington may
terminate this agreement in this paragraph respecting accounting
and distributions at any time and attempt to collect its share of
rental income directly from the tenant; however, enforcement of
all other provisions of the lease remains the sole right of Fund
XXII pursuant to Section 1 hereof. Fund XXII may terminate its
obligation under this paragraph upon 30 days notice to
Whittington prior to the end of each anniversary hereof, unless
agreed in writing to the contrary.
3. Full, accurate and complete books of account shall be kept
in accordance with generally accepted accounting principles at
Fund XXII's principal office, and each Co-Tenant shall have
access to such books and may inspect and copy any part thereof
during normal business hours. Within ninety (90) days after the
end of each calendar year during the term hereof, Fund XXII
Co-Tenant Initial: /s/ CRW
Co-Tenancy Agreement for Hollywood Video, Saraland, AL
shall prepare an accurate income statement for the ownership
of the Premises for said calendar year and shall furnish
copies of the same to all Co-Tenants. Quarterly, as its share,
Whittington shall be entitled to receive 12.1242% of all items
of income and expense generated by the Premises. Upon receipt
of said accounting, if the payments received by each Co-Tenant
pursuant to this Paragraph 3 do not equal, in the aggregate,
the amounts which each are entitled to receive proportional to
its share of ownership with respect to said calendar year
pursuant to Paragraph 2 hereof, an appropriate adjustment
shall be made so that each Co-Tenant receives the amount to
which it is entitled.
4. If Net Income from the Premises is less than $0.00 (i.e.,
the Premises operates at a loss), or if capital improvements,
repairs, and/or replacements, for which adequate reserves do not
exist, need to be made to the Premises, the Co-Tenants, upon
receipt of a written request therefor from Fund XXII, shall,
within fifteen (15) business days after receipt of notice, make
payment to Fund XXII sufficient to pay said net operating losses
and to provide necessary operating capital for the premises and
to pay for said capital improvements, repairs and/or
replacements, all in proportion to their undivided interests in
and to the Premises.
5. Co-Tenants may, at any time, sell, finance, or otherwise
create a lien upon their interest in the Premises but only upon
their interest and not upon any part of the interest held, or
owned, by any other Co-Tenant. All Co-Tenants reserve the right
to escrow proceeds from a sale of their interests in the Premises
to obtain tax deferral by the purchase of replacement property.
6. If any Co-Tenant shall be in default with respect to any of
its obligations hereunder, and if said default is not corrected
within thirty (30) days after receipt by said defaulting Co-
Tenant of written notice of said default, or within a reasonable
period if said default does not consist solely of a failure to
pay money, the remaining Co-Tenant(s) may resort to any available
remedy to cure said default at law, in equity, or by statute.
7. This Co-Tenancy Agreement shall continue in full force and
effect and shall bind and inure to the benefit of the Co-Tenant
and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns until January
30, 2033 or upon the sale of the entire Premises in accordance
with the terms hereof and proper disbursement of the proceeds
thereof, whichever shall first occur. Unless specifically
identified as a personal contract right or obligation herein,
this agreement shall run with any interest in the Premises and
with the title thereto. Once any person, party or entity has
ceased to have an interest in fee in any portion of the Premises,
it shall not be bound by, subject to or benefit from the terms
hereof; but its heirs, executors, administrators, personal
representatives, successors or assigns, as the case may be, shall
be substituted for it hereunder.
8. Any notice or election required or permitted to be given or
served by any party hereto to, or upon any other, shall be given
to all known Co-Tenants and deemed given or served in accordance
with the provisions of this Agreement, if said notice or
elections addressed as follows;
Co-Tenant Initial: /s/ CRW
Co-Tenancy Agreement for Hollywood Video, Saraland, AL
If to Fund XXII:
AEI Income and Growth Fund XXII Limited Partnership
1300 Minnesota World Trade Center
30 E. Seventh Street
St. Paul, Minnesota 55101
If to Whittington:
Carl R. Whittington, Trustee
1440 Elm Grove Avenue
Akron, OH 44312
Each mailed notice or election shall be deemed to have been given
to, or served upon, the party to which addressed on the date the
same is deposited in the United States certified mail, return
receipt requested, postage prepaid, or given to a nationally
recognized courier service guaranteeing overnight delivery as
properly addressed in the manner above provided. Any party hereto
may change its address for the service of notice hereunder by
delivering written notice of said change to the other parties
hereunder, in the manner above specified, at least ten (10) days
prior to the effective date of said change.
9. This Agreement shall not create any partnership or joint
venture among or between the Co-Tenants or any of them, and the
only relationship among and between the Co-Tenants hereunder
shall be that of owners of the premises as tenants in common
subject to the terms hereof.
10. The unenforceability or invalidity of any provision or
provisions of this Agreement as to any person or circumstances
shall not render that provision, nor any other provision hereof,
unenforceable or invalid as to any other person or circumstances,
and all provisions hereof, in all other respects, shall remain
valid and enforceable.
11. In the event any litigation arises between the parties
hereto relating to this Agreement, or any of the provisions
hereof, the party prevailing in such action shall be entitled to
receive from the losing party, in addition to all other relief,
remedies and damages to which it is otherwise entitled, all
reasonable costs and expenses, including reasonable attorneys'
fees, incurred by the prevailing party in connection with said
litigation.
REST OF PAGE INTENTIONALLY LEFT BLANK
Co-Tenant Initial: /s/ CRW
Co-Tenancy Agreement for Hollywood Video, Saraland, AL
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Whittington: Carl R. Whittington, Trustee of the Carl R.
Whittington Trust dated October 16, 1996
By:/s/ Carl R Whittington Trustee
Carl R. Whittington, Trustee
STATE OF OHIO)
) ss
COUNTY OF Summit)
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 27th day of March,
2000, Carl R. Whittington, Trustee of the Carl R. Whittington
Trust dated October 16, 1996 who executed the foregoing
instrument in said capacity.
/s/ Marilyn Dodson
Notary Public
[notary seal]
Co-Tenant Initial: /s/ CRW
Co-Tenancy Agreement for Hollywood Video, Saraland, AL
Fund XXII: AEI Income & Growth Fund XXII Limited Partnership
By: AEI Fund Management XXI, Inc., its corporate general
partner
By:/s/ Robert P Johnson
Robert P. Johnson, President
State of Minnesota )
) ss.
County of Ramsey )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 28th day of March,
2000, Robert P. Johnson, President of AEI Fund Management XXI,
Inc., corporate general partner of AEI Income & Growth Fund XXII
Limited Partnership, who executed the foregoing instrument in
said capacity and on behalf of the corporation in its capacity as
corporate general partner, on behalf of said limited partnership.
/s/ Barbara J Kochevar
Notary Public
[notary seal]
Co-Tenant Initial: /s/ CRW
Co-Tenancy Agreement for Hollywood Video, Saraland, AL
EXHIBIT A
Lot 1, WAL*MART SQUARE, according to the plat thereof recorded in
Map Book 70, Page 25 of the probate Court Records of Mobile
County, Alabama.